The decision may impact everything from govt's signature Aadhaar programme to civil liberties, to gay rights to collection and use of personal data.

NEW DELHI: In a landmark judgement, a nine-judge Supreme Court bench on Thursday declared privacy a fundamental right, a decision that may impact everything from the government’s signature Aadhaar programme to civil liberties, to gay rights to collection and use of personal data by Internet and financial firms. The verdict can also impact restrictions on right to convert and choice of food.

The bench, headed by Chief Justice JS Khehar, ruled privacy was part of the fundamental right to life and personal liberty guaranteed to all citizens under Article 21 of the Constitution. It also spoke of the right to marriage, procreation, privacy of home and the right to be left alone as other facets of privacy. The broad implication is that the government cannot frame any policy or law that completely takes away the citizen’s right to privacy. It can only place reasonable restrictions on limited grounds such as national sovereignty and security, public order, decency, etc, as specified in Article 19 (2) of the Constitution.

A five-judge bench will now examine claims of Aadhaar opponents that the programme is an unreasonable intrusion into citizens’ privacy. The petitioners are challenging the nature of information collected, which includes biometrics, and its alleged unlimited use by government agencies.

Commenting on the ruling, finance minister Arun Jaitley blamed the previous United Progressive Alliance government for bringing in Aadhaar without a law or safeguards. He said the National Democratic Alliance government, while framing the law for use of the unique ID, had ensured all safeguards and that “privacy as a fundamental right is respected”.

Terming the ruling a “positive development”, Jaitley said the apex court has accepted the government’s “argument that privacy is a fundamental right, but it’s not an absolute right”.

Welcoming the judgement, BJP president Amit Shah insisted the verdict was in line with the Modi government’s vision and actions. In a blog post, Shah attacked Congress and referred to the part of the judgement that overruled the Emergency-era ADM Jabalpur verdict of the apex court that curtailed citizens’ right to approach courts to challenge detentions.

The Supreme Court also touched upon several key facets of privacy such as informational privacy in the digital age and urged the government to quickly bring in a data protection law to deal with these fast-changing technological developments. There are potential implications here for data collected by firms in finance and ecommerce, and by app developers.

Significantly, arguments in a case challenging WhatsApp’s new privacy policy that allows content sharing with Facebook will likely be affected by the judgement. Thursday’s ruling also knocks off the legal basis of the Koushal judgement which upheld Section 377, effectively criminalising all homosexual activity.

Five judges — CJI Khehar, and Justices RK Aggrawal, Abdul Nazeer, DY Chandrachud and Sanjay Kishan Kaul — held that sexual orientation is part of a person’s fundamental right to privacy. Chances that homosexuality will be legal brightens after this judgement.

AadhaarPetitioners have challenged the Aadhaar scheme on other grounds — expressing fear that the data being collected by private agencies may be misused, and questioning the proposal to link Aadhaar with PAN cards and phone numbers, and making the unique ID number mandatory for availing government benefits.

CJI Khehar did not fix a bench or a date on which the legal challenge to Aadhaar is to be heard. CJI-designate Dipak Misra will take a decision on this.

Former attorney-general Mukul Rohatgi had first raised this issue to challenge the opponents, but new A-G KK Venugopal has since clarified that not all facets of privacy were fundamental rights. This is a legal proposition he will again argue, he has said.

The Aadhaar hearing was stalled after the government contested the very existence of a fundamental right to privacy to reject arguments of those opposing the scheme on the ground that its allpervasive nature made it impermissible in law. Those opposing the scheme then suggested the court first decide this issue before examining Aadhaar threadbare.

Civil LibertiesThe bench also overruled the Emergency-era ruling made in the ADM Jabalpur case that had said the State could suspend and take away the liberty of citizens during a proclamation of Emergency and the citizens cannot even approach the top court for relief.

“The purpose of infusing a right with a constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment. Constitutionally protected rights embody the liberal belief that personal liberties of the individual are so sacrosanct that it is necessary to ensconce them in a protective shell that places them beyond the pale of ordinary legislation. To negate a constitutional right on the ground that there is an available statutory protection is to invert constitutional theory,” Justice Chandrachud said.

His ruling was a historical correction of sorts with Justice Chandrachud overruling his father’s judgement to this effect, and lauding the dissenting voice of Justice HR Khanna, who was superseded for speaking up for citizens and their civil liberties. “India’s brush with a regime of the suspension of life and personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the judiciary is not vigilant,” he said, rejecting the government stand that privacy was a mere statutory right.

Gay RightsFour justices, J Chelameswar, SS Bobde, Abhay Manohar Sapre, RF Nariman and Sanjay Kishan Kaul, didn’t dissent from the five judges who spoke on sexual orientation as a facet of privacy. This clears the way for decriminalising homosexuality.

The nine judges rejected the earlier SC ruling that had rolled back the Delhi High Court decision to decriminalise all adult, consensual homosexual behaviour. It was violative of the community’s right to life and dignity, Justices Chandrachud and Kaul wrote.

"Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution,” said Justice Chandrachud, backed by four other judges, including the CJI. Justice Kaul echoed his sentiments.

Other RightsLawyers studying the judgement said the privacy ruling can potentially impinge upon laws that restrict a person’s right to convert as well as laws/rules that curtail the choice of food. They said following the judgement, many such laws and rules will be more vulnerable to legal challenge. India has a number of state-level laws against conversion, and several states have restrictions on animal slaughter.